Resolving international disputes Essay

Differences that you should be aw atomic number 18(p) of belongings truth Sources of righteousness and method of judicial reasoning Property rectitude polished police force You are either the implicit proprietor, or you are non. 3 compvirtuosonts of absolute self- go out usus (latin term) i.e. apply Right of use fructus ie. enjoyment of r thus farues Right to enjoy revenues abusus ie disposal Right to lag of that thing dismemberment This does non mean that the absolute thrower can non stick up away certain dutys of the seat, as long as the rights transfer fertilisation to the confesser E.g. usifruct farmer has a large tack of land and son wants to detect married and stimulate family. Farmer is non willing to allot up the farm, that offers him a part of the farm where he lets him manikin a house and farm on it, scarce after 20/30/40 course of instructions the land goes back to the father make in line if you lease an apartment from the ingester of a bu ilding, or a piece of land to farm on, etc you get the right to use it in thoughtfulness of rent. In this sense, the owner is giving away sensation right (the right to use the airplane propeller) as long as at the end they get the right of use back. vulgar Law Theory no absolute ownership of land King gives a portion of the coun raise to the Earls. In gross law, on that point is a difference mingled with ownership and be possessed ofion.The Earls possess it, they are holding the land for him. The Earls will provide him every year with manything in return (e.g. bushels of corn, men for war, etc). Earl gives a portion of that land to the Dukes, and asks that they hold it for them, in exchange for bushels, men etc. Dukes to the Lords, all the way to the eclogue/farmer. When the farmer died, he was non able to give it to his children it would go to the lord, etc up the chain and that someone would redelegate it. Known as the feudal trunk. Leasehold is when you hold it for a limited period of time. A freehold is where you hold the land forever, and you can change the land, leave the land to your children. The only way it reverts back to the king is if someone dies without leaving any heirs, which means it goes up the chain of ownership. 2 types of ownership Real Beneficial Origin and Concept of Trust William the Conqueror state I am Law, scarcely there were lines with this as the king could not get hold every showcase. Eventually, he became busy with other things (wars, etc) therefrom he narrow down up a system of mashs. They did not have to see everybody, unless(prenominal) they issue a writ. System of writs a judicature order relative someone that someone complained most you therefore you have to show up at court on x day.You only had a writ for certain problems. Trespass (tort) When someone caused you or your property personal detriment Habeas corpus (produce the body) When someone grabbed a relative of yours and wrongly imprisone d them. This came about because of the idea of Where there is a remedy (ie. a writ) there is a right, but if you did not have a writ to cover a specific problem, then you did not have access to the courts lead to a parallel system of bonnyice rallyed Equity lead to new wakeless concepts such as the TRUST Trust you are too well-off and do not want to be taxed. Therefore, you give some wealthiness to the friend who is going to hold it for you until the children are of age and you have died. The problem arises when the friend does not give it back. They have no writ therefore cannot take it back with court. When the friend goes to court, they argue that the land was prone on a condition of boldness (the friend was trusted by the father to give the property back). In addition to the possibility of someone being the absolute owner, they can overly be the owner subject of a trust. Trust difficult to define, Underhill gave one of the best definitions under(a) 5 partsAn 1 equitab le obligation, 2 binding a person ( trustee), 3 to deal with property over which he has go for (trust property), 4 for the benefit of persons (beneficiaries), of whom he (the trustee) may be one, 5 any one of whom may enforce the obligation Equitable obligation obligation created under the law of equity which was established by the courts of equity Who has the obligation The trustee What is the obligation To deal with the trust property over which he has control For what purpose For the benefit of the beneficiaries What is the consequence if the trustee does not deal with the property The Trustee can be sued by any one of the beneficiaries How a trust works There are 2 ways to primp up a trust The settler gives trust property to one or more trustees for the benefit of one or more beneficiaries (essentially a gift) Can be through a will or agreement (intervivos trust) involving the settler or the trustee By way of declaration of trust a person simply declares that he is holding cer tain property in trust E.g. someone wants to set up a business, but does not want it known that they are the shareholders.Therefore, someone else holds that position, but signs a shoot that states that all income goes to them, and they will exercise the wishes of the settler. Examples of trusts wills, Real Estate investing Trusts (REIT), endowments You may set up a family trust for tax take ininess purposes. You can spread your income across the beneficiaries of that trust. Shareholder agreements, where sometimes money is put into a trust. There are wide personal business and tax-planning purposes to trust. differences between accomplished law and common law ownership In everyday Law, a property can have two owners. The real owner (whose name appears as the owner) or the beneficiary owner In civil Law, you are the owner, or you are not. Only one type of ownership. 2 Sources of law and method of judicial reasoning both systems have 3 pedigrees Judicial Precedent ie. tribu nal decisions Legislation Doctrine ie. scholarly writings articles or books that are written to explain the law, and very often to point out it the difference between the two systems is the weight and importance of each source Common Law JUDICIAL PRECEDENT (most important) homage Structure imperative Court Court of Appeal Trial Court Each court is bound by its earlier decisions.Trial Court is bound by its earlier decisions unless overturned by the Court of Appeal, same thing for Court of Appeal with Supreme Court, etc ( descry decisis stand by the past). The Supreme Court is also bound by its own causalitys The Supreme Court has overturned its own precedents, such as the decision that people cannot be segregated but equal, as in the case with discrimination. Principal known as look decisis stand by the past Abortion example of Row vs wade (or something like that) How do you know when a judgement is a precedent To know that, you have to analyse the precedent Conditions for deci sion to be binding Decisions divided into two parts Ratio decidendi the reason for the decision for arriving at the decision (only this is the precedent) Obiter dictum other reasons that the judge has for coming to his/her conclusions It is often not clear which is the obiter dictum and which is the ratio decidendi. The facts have to be almost identical.What happens when they arrive a precedent they do not like They could try and understand differences between the case then and now. What then happens is that if the judges can fill out between it, they make judge-made law, which is an playing area of contestation and disagreement. Judges are not supposed to make the law. Legislation In the common law system, command is not as important as judicial precedent. If a court interprets a law in a manner in which the sevens doesnt like, parliament can pass a law countermanding that. Catch ( lawmaking is subject to judicial interpretation, and this means that the rules regarding stare decisis apply to interpretation. Therefore, when you are experienceing for in the common law system, and you are wondering what does this code mean, you look at any court judgements/precedents in order to understand its essence and application. Additionally, from a business point of view, there is very little polity on very important aspects of business law. (e.g. you find it on leases, contracts of sale, etc but other types of contracts such as agency, etc there is no legislation, and therefore purely jurisprudence applies. Additionally, to a large extent there is no legislation regarding tortsAs a source of law, it can supersede jurisprudence, but does not feature as lots. Doctrine Scolarly writings For historical reasons, doctrine is less important and less abundant than it is in the civil law system. They try to summarise the law and put it in a rational form. civil LAW Judicial Precedent (Jurisprudence) Not as important as in common law because a) There is no concep t of stare decisis (Courts are not formally bound by higher courts, they just carry more weight. Another level can just train to overrule) (2) Legislation Originally, the first code of laws that was developed in the western reality was developed by the Roman Empire. This was different for a huge military issue of places because it covered such a wide expanse. When Napoleon ruled, there were even differences within France itself He created a different set for France and the rest of the Empire, The Law of Paris, and codified it into one document, and in 1804 it became law.It dealt with things such as family law, property law, contract law, civil liability, etc A code does the following in regards to each area that it deals with, it sets out general broad principles then sets out certain principles within. They are so broad that it covers the subject matter. For example, in civil law under Quebec, civil liability is anyone that is capable, is liable for any damage he/she causes thro ugh a wrongful act to a third party. Once you have this principle you have rules of application (e.g. what is the liability of parents if their children does wrong) (3) Doctrine Doctrine is much more important than in the Common Law system. Before, in Common Law system, if you wanted to become a lawyer you didnt have to go to train, just work with lawyers and read books. Example Abraham Lincoln never went to school he studied on his own and ended up proper a lawyer with the help of those he worked with. Ended up fair one of the most renowned layers in the the States before he went into politics. Difference between the two Civil law ( would read Justinian finale and make annotations and commentaries and some would start publishing codes.When Napoleon made some laws, books came out analysing the books and laws. Judges read the laws and doctrines as a basis for their judgements (today there is more doctrine in the Civil Law system than common law) Common ( Lets see what the jud gment says Civil ( lets see what the doctrine says sub judice SYSTEMS SPREAD BY COLONIZATION AND CONQUEST Common Law Includes India, England, USA Why common law is different around the world slope Common law applied to the Colonies, so far as it was fitted by its institutions and circumstances. This means that you apply the English Common Law as far as needed, then you apply a chain of precedents As colonies gained independence, they established a cut-off date after which British precedence would not apply to them Over time, jurisdictions formed their own supreme Courts under their own state of appeal. After a certain date, Canada said that their Supreme Court judgements were right, and people could not go to the British House of Lords for an overruling, and this happened everywhere.Civil Law Formed out of Spain and all of her colonies, Germany, Italy, Portugal and its colony Brazil, and each country has its own civil code. The rules in France are not the same as the rules set ou t in Quebec, however the sources, the role, all of that is similar. Quebec Situation Was both a French and British colony. The French King was given a selection keep Quebec, or keep the islands of St Pierre and Miquelon. He decided to keep the islands. In 1774, the Quebec Act was adopted by parliament. In 1774, the 13 colonies started to jabbing for independence. They adopted the Quebec Act, which was intended to protect the religion, language and culture. It created a hybrid system of Common Law and Civil Law. It said that local Quebec Law (Civil Law) will govern property, contracts, family law, civil liability.Basically, in Quebec, what was used was old Roman law and the custom of Paris. Under the Quebec system, the court system became a British system. The go was that Common Law heavily influenced civil law. July 1866, the Civil Court of Law in Canada codified the Civil Law in Quebec (like Napoleon and France). very much of the Civil Code of Canada was taken by the Napoleonic Code. Unlike what you would call the traditional Civil Law System, stare decisis was used in Quebec. If you read a judgement from a Court of Quebec and one outside Quebec, you would fountainhead whether it is not a Common Law system. This is because they are a Civil Law system, but they reason similarly to the Common Law system.